Civil Procedure

Question 1

When does federal question jurisdiction exist?

Answer 1

When plaintiff’s claim is based on federal law. Must be in the well-leaded complaint. (Mottley)

Question 2

Two exceptions to diversity jurisdiction.

Answer 2

(1) probate cases

(2) domestic relations cases

Question 3

What is a corporation’s citizenship?

Answer 3

Two citizenships:

1) state where incorporated
(2) state where corp has principle place of business (headquarters

Question 4

What is a individual’s citizenship?

Answer 4

Domicile (resident + intention to remain indefinitely)

Question 5

What is the amount in controversy for diversity jurisdiction?

Answer 5

$75,000. Must only plead amount in good faith.

Question 6

Supplemental jurisdiction

Answer 6

Allows federal court with subject matter jurisdiction over one claim to hear additional claims if all claims share a “common nucleus of operative fact.” 18 USC § 1367.

Question 7

When does a federal court citing in diversity have supplemental jurisdiction over counter- and cross-claims?

Answer 7

Compulsory counterclaim = Always has supplemental jurisdiction over compulsory counterclaims (one that arises out of same transaction/occurrence).
Permissive counterclaim = Only has jurisdiction over permissive counterclaim if it independently meets the diversity requirements.
Cross claims = can hear if it arises out of the same transactional occurrence.

Question 8

Exceptions to supplemental jurisdiction

Answer 8

(1) claims by π against impleaded third-party ∆s
(2) claims by π against additional ∆s joined as necessity
(3) claims by interveners
(4) claims by π joined involuntarily

Question 9

Removal to federal court

Answer 9

Can remove if case could have been brought originally in federal court. Only ∆s remove.
One year limit on removal.

Question 10

Two personal jurisdiction questions

Answer 10

(1) Is personal jurisdiction authorized by statute or court rule (look for long-arm statute)?
(2) Is this personal jurisdiction permitted by federal Constitution?

Question 11

Constitutional requirements for personal jurisdiction

Answer 11

Due process requires “minimum contacts” between ∆ and the forum state, comporting with “fair play” and “substantial justice.”
Look for: Personal availment of the state or its laws by ∆.

Question 12

Can personal jurisdiction be waived?

Answer 12

Yes. Unlike subject matter, ∆ can waive.

Question 13

When must ∆ challenge personal jurisdiction?

Answer 13

At the first opportunity (i.e., motion to dismiss or in ∆’s answer)

Question 14

Federal exceptions to personal jurisdiction (two statutes)

Answer 14

Federal Interpleader Act = authorizes nationwide service of process
Bulge Provision of federal rules = allows service on impleaded third-party ∆ OR a necessary party if ∆ is within 100 miles of the federal courthouse.

Question 15

How do federal courts determine personal jurisdiction?

Answer 15

Follow the personal jurisdiction law of the state where they sit. Generally, the following is enough:
Individual = (1) physically present in the state (2) domiciled in state OR (3) consent
Corporation = (1) incorporated in state, (2) principle place of business in state, OR (3) if foreign corp, doing business in the state (requires more than one transaction).

Question 16

In rem and quasi-in rem jurisdiction

Answer 16

Applies if property (real or intangible) is within the state.
Quasi-in rem = Tries to use in-state property as a basis for forcing an out-of-state defendant to litigate an unrelated claim. Still requires minimum contacts (rarely used).

Question 17

Notice and Service of Process requirements

Answer 17

Service must be delivered. Three ways to deliver: (1) leave summons at ∆’s dwelling, (2) delivery to ∆’s authorized agent, or (3) delivery by registered mail.

Question 18

Venue

Answer 18

Proper venue if:

(1) if all ∆ are in-state, where any ∆ resides.
(2) where the claim arose — “a substantial part of the events or omissions” on which claim is based or “substantial part of the property” subject to the action
(3) if neither of above, in any district where any ∆ can be served.

Question 19

Which law applies after venue transfer?

Answer 19

If original court was proper venue = original forum law controls
If original court was improper venue = new forum law controls

Question 20

Erie doctrine

Answer 20

In diversity cases, federal courts apply federal procedural rules but state substantive law. This includes (1) substantive rules, (2) statutes of limitation, (3) rules of proof, and (4) state rules on choice of law.

Question 21

Notice pleading standard

Answer 21

Pleadings only need give fair notice by a short and plain statement of the claim. But allegations must create a “plausible” case for recovery. (Twombly & Iqbal)

Exceptions: (1) fraud, (2) mistake, or (3) special damages. These require pleading with particularly.

Question 22

Grounds for motion to dismiss

Answer 22

(1) lack of subject matter jurisdiction
(2) lack of personal jurisdiction
(3) improper venue
(4) failure to state a claim upon which relief can be granted
(5) failure to join a necessary party
(6) forum non conveniens

Question 23

Standard for amending pleadings

Answer 23

As of right = Pleadings can be amended within 21 days after serving pleading.
By leave of court = after 21 days, must ask court for permission. Permission should be “freely granted.”

Amendments are deemed to relate back to date of original pleading. (Prevents SoL problems)

Question 24

Motion for a more definite statement

Answer 24

Asks that the pleadings be made more specific

Question 25

Motion to strike

Answer 25

Used to delete from pleadings matters that are scandalous or prejudicial and NOT RELEVANT to the case at hand.

Question 26

Amendment to change or add ∆

Answer 26

Two requirements:

(1) Must concern the same transaction as original pleading AND
(2) ∆ must have known or had reason to know that the action should have been brought against it.

Question 27

Permissive joinder of parties

Answer 27

Any number of πs may join if (1) they assert claims arising out of the same fact or occurrence and (2) there are common questions of fact and law.
No party can be joined if it would destroy complete diversity. (but only one party’s claims need to exceed $75,000)

Question 28

Compulsory joinder of parties (by ∆s)

Answer 28

Party’s presence is “necessary for a just adjudication.” (Still requires subject matter and personal jurisdiction.)

Question 29

Intervention

Answer 29

Intervention as of right = when outsider claims an interest in lawsuit that will be compromised by disposition of the pending action.
Permissive intervention = allowed if there is a common question of law or fact between the main claim and intervener’s claim.

Question 30

Interpleader

Answer 30

Party possessing property is a “stakeholder” who can interplead the “claimants” and resolve all claims in a single action. Can be used offensively by the stakeholder or defensively by the claimant.

Question 31

Joinder of claims

Answer 31

All claims between the same parties can be joined. No limitation. Can aggregate amounts to reach $75,000 requirement.

Question 32

Compulsory counterclaims

Answer 32

Arise out of the same transaction or occurrence. Must be brought or will be lost forever.

Question 33

Permissive counterclaims

Answer 33

Do not arise out of the same transaction or occurrence. Independent jurisdiction is required. (i.e., must be federal question OR diversity + $75K)

Question 34

Cross-claim

Answer 34

Cross claims against co-parties (e.g., π against π). Must arise out of same transaction of occurrence. Never compulsory.

Question 35

Interpleader / Third-party practice

Answer 35

∆ may implead someone who is or may be liable to the ∆ for all or part of the π’s claim against him.

Question 36

Class Action requirements

Answer 36

(1) Numerousness of parties
(2) Common questions of law or fact
(3) Typicality of claims of class representative
(4) Adequacy of representation by representative’s lawyer.

Any dismissal or compromise in class action requires judicial approval.

Class Action Fairness Act = if 100+ πs with $5M or more at stake, only need minimal diversity.

Question 37

Scope of disovery

Answer 37

Anything relevant. Anything that is admissible at trial or may lead to something that is admissible.

Question 38

Work product rule

Answer 38

Attorney work product protects: (1) Documents or things (not information) (2) prepared in anticipation of litigation (3) by or for another party or her representative.

Qualified privilege: Other party may still get work product if can show (1) necessity and (2) it cannot be obtained elsewhere.
Witnesses can always get a copy of their own statement. But cannot discover attorney’s mental impressions.

Question 39

Oral depositions

Answer 39

Questions asked under oath.

Limited to 10 depositions of one day’s duration unless court orders more. If witness, must deliver to them a subpoena.

Question 40

Interrogatories

Answer 40

Questions asked and answered in writing.

Only used against a party to litigation, and limited to 25 unless court allows more.

Question 41

Physical and mental examination

Answer 41

Can only be required of a party (not a witness). And only when (1) party’s physical or mental condition has been put in controversy and (2) good cause is shown.

Question 42

Request for admissions

Answer 42

Used for streamlining trial, not discovering new information. Failure to respond is an admission.
Admissions have no preclusive effect; cannot be used in future proceedings.

Question 43

Five ways to terminate proceedings without trial

Answer 43

(1) Judgment on the pleadings
(2) Default judgement
(3) Voluntary dismissal (without prejudice)
(4) Involuntary dismissal (with prejudice)
(5) Summary judgment

Question 44

Voluntary dismissal

Answer 44

π has a right to voluntary dismissal once at any time prior to ∆’s serving an answer or motion for summary judgment.
∆ can file for dismissal at earliest opportunity.

Question 45

Involuntary dismissal

Answer 45

Without prejudice if = imposed for (1) lack of jurisdiction, (2) improper venue, or failure to join an indispensable party.
If with prejudice = counts as adjudication on the merits and has full res judicata effect.

Question 46

Summary judgment standard

Answer 46

There is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Must be supported by particular parts of materials in the record.
(Unlike motion to dismiss, this takes evidence, or lack thereof, into account.)

Question 47

Trial by jury

Answer 47

Required by 7th Amendment for law but not equity (as understood in 1791).
When legal an equitable issues overlap, try legal issues first.
Demand for trial by jury must be made no later than 14 days after service of answer or other pleading addressing the issue.

Question 48

Preemptory challenges

Answer 48

Each side has 3 preemptory challenges to strike jurors for any reason (except race or gender)

Question 49

Motion for judgment as matter of law (J.N.O.V.)

Answer 49

Same as summary judgment but made after close of π’s case or at end of all evidence
Can renew motion for judgment as matter of law after the verdict if you made the motion pre-verdict.

Question 50

New trial motion grounds

Answer 50

(1) error made the judgment unfair
(2) newly discovered evidence that could not have been found at time of trial
(3) prejudicial misconduct by lawyer, party, or juror
(4) excessive verdict AND winning party refused remittitur.

Question 51

Timing of appeal

Answer 51

Must be made 30 days after entry of final judgment. Time is tolled by motion for J.N.O.V. or new trial.

Question 52

Interlocutory orders

Answer 52

Immediately appealable. Available for (1) injunctions and (2) orders affecting property.
May also be had on leave of court if BOTH trial and appellate court certifies the question as involving (1) controlling questions of law that (2) materially advance termination of the litigation.

Question 53

Claim preclusion (res judiciata)

Answer 53

Three elements:

(1) final judgments on the merits in the first suit
(2) second suit involves the same parties or their “successors in interest”
(3) second suit involves the same claim / cause of action

Question 54

Issue preclusion (collateral estoppel)

Answer 54

Three elements:

(1) same issue of fact arises in two suits
(2) issue must have been “actually and necessarily decided” in first suit (e.g., not a default judgment)
(3) party to be precluded must have been a party to the first suit.

Question 55

When may a court exercise specific jurisdiction over a non-resident defendant?

Answer 55

(1) the non-resident has sufficient minimum contacts with the forum state,
(2) the claim asserted against the ∆arises out of those contacts, AND
(3) exercise of jurisdiction is reasonable

Question 56

When suing a trust, whose domicile is counted for jurisdiction purposes?

Answer 56

The trustee’s.

Question 57

What is the “bursting bubble” approach to presumptions in a civil case?

Answer 57

Presumption is not evidence. Presumption will only operate until other party presents evidence. Then, it is rebutted.